The meaning of "Offenses against the Law of
Nations"

by Jon Roland, Constitution Society
1998

Art. I Sec. 8 Cl. 10 of the Constitution for the United States
delegates the
power to Congress to "define and punish ... Offenses against the
Law of
Nations". It is important to understand what is and is not
included in the
term of art "law of nations", and not confuse it with
"international law". They are not the same thing. The phrase
"law of nations" is a direct translation of the Latin jus
gentium, which means the underlying principles of right and
justice among
nations, and during the founding era was not considered the same
as the
"laws", that is, the body of treaties and conventions between
nations, the jus inter gentes, which, combined with jus
gentium, comprise the field of "international law".
The distinction goes back to ancient Roman Law.

Briefly, the Law of Nations at the point of ratification in 1788
included
the following general elements, taken from Blackstone's Commentaries,
and prosecution of those who might violate them:

(1) No attacks on foreign nations, their citizens, or shipping,
without either a declaration of war or letters of marque and
reprisal.

(2) Honoring of the flag of truce, peace treaties, and boundary
treaties.
No entry across national borders without permission of national
authorities.

(3) Protection of wrecked ships, their passengers and crew, and
their cargo,
from depredation by those who might find them.

(4) Prosecution of piracy by whomever might be able to capture
the pirates,
even if those making the capture or their nations had not been
victims.

(5) Care and decent treatment of prisoners of war.

(6) Protection of foreign embassies, ambassadors, and
diplomats, and of
foreign ships and their passengers, crew, and cargo while in
domestic waters or
in port.

(7) Honoring of extradition treaties for criminals who
committed crimes in a
nation with whom one has such a treaty who escape to one's
territory or are
found on the high seas.

And, although it was not yet firmly established with all nations
in 1788,

(8) Prohibition of enslavement of foreign nationals and
international trading in slaves.

To expand on point (2), Blackstone, in discussing border passes,
stated by the law of nations no member of one society has a right
to intrude into another [I]t is left in the power of all states,
to take such measures about the admission of strangers, as they
deem convenient."

No subsequent additions to the "law of nations" could have the
effect of expanding the delegated powers under the Constitution.
Ratification
froze those powers at the moment of ratification. Only the
amendment procedures
provided under the Constitution can add to, subtract from, or
modify them.

Some confusion on whether a treaty could confer additional powers
on
government was introduced by the opinion in Missouri v.
Holland, 252 U.S.
416 (1920), which held that a migratory bird treaty with Canada
enabled the
national government to regulate the protection and harvesting of
migratory birds
within the United States, even though without the treaty the
national government
would not have the power to do so. This contradicts the ancient
Law of Agency
whereunder an agent, in this case federal officials, may not
acquire new powers
from the exercise of a power, but only by delegation from the
principal.
However, the opinion may also be read to say that it is only state
governments
that are required by a treaty to exercise their already delegated
powers, and
that federal courts have appellate jurisdiction over cases of
state compliance
with federal treaties.

The case law was further muddied by the opinion in the case of United
States
v. Belmont, 301 U.S. 324 (1937), which held that executive
agreements
are entitled to the same constitutional authority as treaties in
the relation
between the states and the federal government, and that the
supremacy clause
makes both treaties and executive agreements supreme over state
power as to the
subjects covered by them. This decision has given rise to alarm by
civil
libertarians, because there is no congressional approval required
for executive
agreements, much less the two-thirds vote of the Senate required
for treaties,
or the ratification by three-fourths of the states required for
constitutional
amendments. By this reasoning, the president acting in collusion
with any
foreign government could effectively eliminate states except as
voting
districts.

Based on these precedents, then Secretary of State John Foster
Dulles
promulgated what some call the "Dulles Doctrine" that treaties,
executive agreements, and votes in the United Nations, could
effectively amend
the U.S. Constitution and expand the powers of the federal
government without
limit.

However, this misunderstanding about whether the constitution
could be
amended through the making of treaties was denied in the case of Reid
v.
Covert, 354 U.S. 1 (1957):

"This court has regularly and uniformly recognized the supremacy
of the
constitution over a treaty" [Reid, at p. 17].

"... when a statute which is subsequent in time is
inconsistent with a treaty, the statute to the extent of
conflict, renders the
treaty null." [Reid, supra, citing Geofroy v. Riggs,
133 U.S.
238, at p. 267]

"No agreement with a foreign nation (no exec. orders, no Pres.
directives, no "accords" etc.) can confer power on Congress or
any
other branch of government, which is free from the restraints of
the
constitution" [Reid, supra].

Despite the decision in Reid v. Covert, however, the
dominant faction
in the federal government continues to maintain the Dulles
Doctrine, arguing
that Reid only applied to infringements on rights recognized in
the
Constitution, and did not prevent expansion of federal powers
through treaty,
even though one of the fundamental rights recognized in the Tenth
Amendment was
the right not to have government exercise powers not delegated to
it.